Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-09-01


sons may not go. If the mandate of the Act
could be fully carried out. But In accordance
with the principles declared in Kilbourn vs.
thompson and the equally important doctrines
announced in Boyd VS.. The United States. the
Commission is limited in its inquiries into the
interests Of these Directors. officers and en-
pioyes In any other business, company or cor
poration TO such matters as these persons may
choose to disclose. They cannot be compelled
70 open their books and expose such other bust
ness 10 the inspection and examination of the
Commission. They were not prohibited from
engaging in any other lawful business because
OF their interests In and connection with the
Central Pacific Railroad Company and that
other business might as well be the construction
and management of other railroads, as the
planting of vines or raising of fruit, in which
some of these Directors and officers and en-
ployes have been, in fact engaged And they
are entitled 10 toe same protection and exemD-
ton from inquisitorial investigation into such
business as any other citizen engaged in ike
business.
With reference to the vouchers respecting
which the principal interrogatories are pro-
pounded and TO which we are asked to compel
answers from the witness it is conceded by the
commissioners on this motion that the moneys
covered by them we're not charged against the
United states IN aseertaining the net earnings
OF the company. II such were the case il is diff
hcult to see what interest the United States can
have III the disposition of these moneys Be that
as 1t may, the Federal Courts cannot upon that
concession. aid the Commission in ascertaiuiu9
cannot become the instrument of the Commits
sion IN turthering Its investigation.
Their power its nature and extent Is defined
by the Constitution. The Government estab-
lished by thatinstrument is one of the delegated
powers, supreme in its prescribed sphere but
without authority beyond it. No department
OF II can exercise any powers not specifically
enumerated or necessarily implied in those
enumerated. Such is the teaching of all ofour
great jurists. and the tenth amendment declares
that the powers not delegated to the United
States by the Constitution, nor prohibited by it
to the States, are reserved TO the States respec-
lively, or to the people," Anv legislation of
Congress beyond the limits of the powers dele
gated is an invasion of the rights reserved to the
States or to the people and is necessarily void
The first section of the third article of the Con
sHtutlon declares that the judicial power of
the United States shall be vested in one Supreme
Court and such inferior Courts as the Congress
may, from time to time. ordan and establish /"
The second section of the same article declares
that the judicial power shall extend to all
cases, IN law and equity arising under this
constitution, the laws of the United States and
treaties made, or which shall be made, under
their authority; to all eases affecting embassa-
doris. other pubic ministers and consuls: 70 all
cases OF admiral ty aud MARITIME jurisdiction;
TO controver to which the United States shall
be 3 party; to controversies between two or
more States: between a State and citizens of an
other state; between citizens ofdifferent States:
between citizens of the same State claiming lands
under grants of different States and between a
state, or the citizens thereof and foreign States
citizens or subjects"
This section was modified by the Eleventh
Amendment. declaring that " the judicial power
shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against
one of the United States by citizens of another
state, or by citizens or subjects of any foreign
State"
AS thus modified the section states all the
cases and controversies in which the judicial
power Of the United States can be exercised. ex-
cept those arising on a petition for writ of
n n r9nI L.
ones personal freedom. The judicial power of
the United States is, therefore, vested in the
Courts, and can only be exercised by them in
the eases and controversies enumerated and in
other proceeding can that power be invoked,
and II is not competent for Congress to require
It's exercise IN any other way. Amy Act proyid-
ing for such exercise would be direct invasion
OF the rights reserved TO the States or to the
people: and it would be the duty of the Court
TO declare II null and void. Story says in his
Commentaries on the Constitution. that I" the
functions OF the Judges of the Courts of the
United States are strictly and exclusively ju-
dicial. They cannot, therefore be called upon
to advise the President in any executive meas
ures or TO give extra judicial Interpretations of
law, or to act as Commissioners in cases of pen
slons or other like proceedings" (Sec. It'll
The judicial article OF the Constitution men
lions cases and controversies. The term contro-
versies If distinguishabe at all from cases. is so
In that 1t Is less comprehensive than the latter
and includes only suits of a civil nature (Chis-
holm VS.. Georgia, Dali 49,. 49,; LIST ueker 8
Commentaries, App. 40, 421.) By cases and
controversies are intended the claims of It'll
giants brought before the Courts Tor determine
ton by sucn regular proceedings as are estab-
hShed by law or custom for the protection or
enforcement OF rights Or the prevention redress
OF punishment of wrongs. Whenever the claim
OF party under the Constitution laws or treaties
OF the United states takes such y form that the
has become Gaze. Tsk term implies the exist.
epce OF present. or possible adverse parties whose
conventions are submitted TO the Courts for ad
indication.
In Osborn rs. United States @ whea. s1e) the
Supreme Court, speaking By Chief Justice Mar
shall, after quoting the - Article of the Consti-
TUITION declaring the extent of the judicial power
OF the United States said This ause enables
the judicial department 10 receive Jurisdiction
te the full extent of the Constitution laws and
treaties OF the United States when any question
respecting them shall ASSUME such form that
tne ]udlclal power IS capable OF acting on il.
That power is capable OF acting only when the
subject is submitted to it by party who asserts
his rights IN the form prescribed by law. 1t
then becomes case, and the Constitution de-
c'ares that the judicial power shall extend TO all
cas- es arising under the Constitution laws and
treaties of the United States"
In his |" Commentaries on the Constitution
MT Justice story says: 1t is clear that the Judi
cial department is authorized TO exercise jEris
diction TO the full extent of the Constitution
laws and treaties of the United States, whenever
any question respecting them shall assume such
a form thst the judicial power is capable Of act
ing upon IL. When il has assumed such form
II then becomes case: and then, and not till
then, the judicial power attaches to it. case
then in the sense of this clause of the Coustitu-
ton, arises when some subject touching the
Constitution, laws or treaties of the United
states is submitted to the Courts by a party who
asserts ms nights IN the form prescribed by
law" And Mr.. Justice Story refers in note to
the speech of Marshall on the case of Robbins
in the House of Representatives before he be-
came chlef Justice, which contains clear state
n l. s1I,.
power of the United States can be exercised
HIS language Was: by extending the judicial
power TO all cases in law and equity, the Consti-
tuition has never been understood to confer on
that department any political power whatever.
To come within this description, a question
must assume q legal form for forensic litigation
aud Judicial decision. There must be parties to
come into Court who can be reached by its pro-
cess, and bound by its power; whose rights ad-
nit OF ultimate decision by a tribunal TO which
they are bound to submit"
The proceedings TO obtain testimony upon let
tiers rogatory to be used in the Courts of foreign
countries is not, us suggested by counsel an ex-
ception TO this doctrine. There are certain
powers inherent in ali Courts. The power to
preserve order IN their proceedings, and 20 pun
ish for CONTEMPT of their authority are in
stances of this kind. And by jurists and text
writers the power of the Courts of record of one
country, as matter of comfy, to furnish assist
ance so far as is consistent with their own uris-
diction. to the CourfS of another country by tax
ing the testimony of witnesses to be used in the
foreign country, or by ordering 1t to be taken
before a magistrate or Commissioner has also
been classed among their inherent powers.
" For by the law OF nations says Greenleaf,
" Courts of justice of different countries are
bound mutually to aid and assist each other,
for the turtherance of justice and hence when
the testimony of foreign witness is necessary ,
the Court before which the action is pending
may send to the Court within whose jurisdiction
the witness resides writ, either patent or close
usually termed a letter rogatory, or a commits
sion sl6 mutug ricisSi.tdfnjs obeRtii dc IN jsris
stI6sidin, from those words contained in it. By
this instrument the Court abroad is informed of
the tendency of the cause aud the names of the
foreign witnesses aud is requested to cause their
dispositions to be taken in due course of law, for
the furtherance of justice; with an offer on the
part OF the tribunal making the request 10 do the
like for the other, in a'similar case" Treatise
on Evidence, Vol 1, Section 800 The comfy
in behalf Of which this power is exercised can
not, of course, be invoked by any mere Investi-
eating Commission. And II would seem that
by Act of Congress. the power of the Federal
Courts in this respect has been restricted to
cases in which foreign Government is party
or has an interest. (R. S. Sec. 407l)
The Act of Congress creating the Railway
Commission in terms provides as already stated